How can an employer defend against allegations of adverse impact?
What will be an ideal response?
There are three basic defenses that an employer can use: job relatedness, BFOQ, and seniority. With job relatedness, the firm shows that decisions were made for job-related reasons. The HR department can help by preparing written documentation to support and explain the decisions. The firm may also claim a bona fide occupational qualification (BFOQ), a personal characteristic that must be present to do the job. The final basis to justify disparate impact is seniority. In companies with a well-established seniority system, more senior workers may receive priority, even if this has an adverse impact on protected class members.
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